RACIAL DISCRIMINATION

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Racial discrimination is the practice of letting a person's race or
skin color unfairly become a factor when deciding who receives a job,
promotion, or other employment benefit. It most often affects minority
individuals who feel they have been unfairly discriminated against in
favor of a Caucasian (or white) individual, but there have been recent
cases where whites have claimed that reverse discrimination has
occurred—that is, the minority received unfairly favorable
treatment at the expense of the white individual.

Court rulings handed down through the years have determined that a
company's responsibility not to discriminate based on race begins
even before an individual is hired. Companies can be held liable if
pre-employment screening or testing is determined to be discriminatory, if
applications ask unacceptable questions designed to screen for race, or if
the overall selection process is deemed to be unfair. One of the main
indicators that racial discrimination has occurred in the hiring process
involves the qualifications of the job applicants. While a slight
difference in qualifications between a minority and nonminority candidate
do not automatically indicate racial bias (if the lesser qualified
nonminority candidate is hired over the minority candidate), a drastic
difference in qualifications has almost always been upheld by the courts
as a sure sign of racial discrimination.

Racial discrimination is a high-profile issue in the business world and is
a very real problem that still exists—and in some cases is getting
worse. In a 1998 study by the nonprofit group Catalyst called
"Women of Color in Corporate Management: A Statistical
Picture," it was shown that minority women, while now accounting
for almost a quarter of all women in the workplace, occupied only 15
percent of the management positions held by women. The study determined
that a combination of racial discrimination and the glass ceiling (a term
that describes the difficulty women in general have in reaching management
positions) was responsible for the disparity in those numbers.

FEDERAL LAWS STRONGLY PROHIBIT RACIAL DISCRIMINATION

Since the social unrest of the 1960s, the federal government has been
actively involved in preventing racial discrimination in the workplace.
The most important law covering racial discrimination on the job is the
Civil Rights Act of 1964—specifically, Title VII of that act, which
strictly prohibits all forms of discrimination on the basis of race,
color, religion, sex, or national origin in all aspects of employment.
Written during a tumultuous period in American history when many people
expected the federal government to right social wrongs, the law was a
monumental piece of legislation that changed the American employment
landscape.

The law stated that it was unlawful for an employer to "fail or
refuse to hire or to discharge any individual, or otherwise discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national
origin." The law covers hiring, dismissals, compensation, and all
other aspects of employment, while also covering actual employment
opportunities that are
available. Examples of racial discrimination that would fall under the
scope of the act include:

I. An employee who alleges that his or her manager only promotes
nonminority employees and keeps minorities in entry-level positions.

II. An employee who alleges that a manager or other person in power tells
jokes or makes statements that are demeaning, insulting, or offensive to
members of a minority group.

III. A manager who makes it clear that he or she believes in racial
stereotypes by admitting that he or she refuses to promote a certain
minority group because "all [members of that group] are
lazy."

The law covers businesses with 15 or more employees and applies to all
private, federal, state, and local employers. In many states, businesses
with fewer than 15 employees face the same rules thanks to local or state
statutes. In addition to the hiring provisions, the law dictates that
employers cannot in any way limit or segregate employees based on race in
any way that would adversely affect their chances at promotions. It does
allow for two narrow exceptions to the law—businesses may use a
"bona fide" seniority or merit system and measure
performance and earnings based on a quantity or quality measuring system,
and employers may use ability tests to determine the most qualified
candidates for a job as long as the test does not discriminate racially in
any way.

In 1991, the 1964 law was significantly amended for the first time by the
passage of the Civil Rights Act of 1991. The law was passed to override
several Supreme Court decisions that had made it much more difficult for
employees to prove that racial discrimination had occurred. One of the
many changes of the 1991 law is that it closed a loophole in the 1964 act
that also involved a Civil War-era statute known as 42 U.S.C. Section
1981. The Supreme Court had held that Section 1981 applied to hiring and
sometimes to promotions, but that it did not cover racial harassment that
occurred in the workplace once a person was hired. The 1991 act said that
all racial discrimination was covered by U.S. law, including post-hire
harassment.

The other major enhancement under the 1991 act involved monetary damages.
Before the law was passed, employees who sued an employer for
discrimination and won could only recover lost wages or salary, lost
benefits, attorney fees, other legal costs, and the costs associated with
reinstatement. The 1991 law said that employees could also recover
punitive monetary damages for pain and emotional suffering, mental
anguish, future lost wages and benefits, and more. Those damages could
only be collected if it was proven that the discrimination was intentional
and there was clearly "malice" or "reckless
indifference" exhibited, but this was a radical change from the
previous legislation. To protect employers from overly large court
settlements, the amount of punitive damages was capped at $300,000 for
certain cases of discrimination, although no caps apply in cases of ethnic
or racial discrimination.

Other changes in the 1991 law involve employment practices that have a
"disparate impact" on racial groups (that is, affect them
more than nonminority groups), make it easier for a plaintiff to receive
damages in cases where a discriminatory practice
and
a nondiscriminatory practice both played a part in a hiring or promotion
decision, and allow employees to challenge seniority systems that are put
into place if the systems are later determined to be discriminatory (in
the past, workers could only sue at the time the system was first put into
place). Together, all of these changes made it easier for workers to prove
discrimination claims, which has increased the number of lawsuits
nationwide.

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

To oversee the federal civil rights legislation, a separate administrative
body was created as part of the Civil Rights Act of 1964. The Equal
Employment Opportunity Commission, or EEOC, was created to enforce laws
that prevent discrimination based on race, sex, color, religion, national
origin, disability, or age when hiring, firing, or promoting employees.
Four groups—race, color, sex, and creed—were given
"protected status" under the law, which was to be upheld by
the EEOC. The commission is an independent regulatory body that has the
power to launch investigations, file lawsuits, and create programs to
eliminate discrimination.

The EEOC has been a controversial organization throughout its nearly
40-year history. Liberal politicians believe that the agency was long
overdue and that it is absolutely imperative that the agency be proactive
in identifying and fighting discrimination in the courts, while
conservatives believe that the organization is a perfect example of
"big government" that intrudes far too deeply into
citizens' lives. The agency's strong enforcement of
affirmative action policies (which actively seek to promote minorities
over equally qualified nonminorities in order to address past
discrimination) has been its most controversial action, as many Americans
oppose affirmative action.

Even with political opposition, the EEOC continues to be effective in
fighting racial discrimination. In 1997, for example, the agency collected
$111 million in judgements for people who claimed to have been harmed by
racial discrimination, including a $34 million settlement with Mitsubishi
Motor Manufacturing. Each year, the EEOC handles nearly 50,000 claims.

STEPS TAKEN BY EMPLOYERS TO END DISCRIMINATION

Because racial discrimination can have disastrous results for a
company—including lower morale, a divided workplace, expensive
lawsuits, and public embarrassment—most companies are taking highly
visible steps to curtail discrimination in the workplace. Steps taken
include in-house workshops and training sessions on racial sensitivity and
diversity in the workplace, training on employment laws, and adopting
strict new rules against discrimination.
Training
magazine reported in 1998 that more than half of the approximately
137,000 companies in the United States with more than 100 employees had
instituted some form of racial sensitivity training.

Unfortunately, many companies do not take action against racial
discrimination until faced with an incident at their workplace or until
they are named defendant in a large lawsuit. Instead of being proactive
and instituting training programs before a problem arises, companies tend
to be slow to act. In November of 2000, the Coca-Cola Company agreed to
settle a racial discrimination suit by paying a penalty of $192.5 million.
Sara Lee Corporation was forced to make a large cash settlement to a
former employee who says that he was the butt of racist jokes, disparaging
remarks, and was even forced to view a noose hanging in his workplace. In
addition to the cash settlement, which was confidential, Sara Lee also
agreed to establish training programs to raise awareness of the
company's anti-discrimination policies.

To make sure that it is on the cutting edge of preventing racial
discrimination, IBM has established individual employee task forces for
almost every group that is employed by the huge company, including men,
women, blacks, Hispanics, Asians, Native Americans, gays and lesbians, and
disabled persons. The groups, which are established at many of the
company's offices, meet regularly to discuss diversity and
workplace concerns. This represents an extreme example of the steps
companies are taking to prevent discrimination, but actions of this type
are becoming more common.

Companies need to take steps to ensure that the training programs they
adopt are appropriate and serve the purpose for which they are intended.
For example, publishing giant R.R. Donnelly & Sons was sued in 1998
because elements of its training program were deemed discriminatory.
Scenes from a training film that depicted the lynching of black slaves, as
well as offensive questions from a questionnaire designed to make white
workers confront racism, were challenged by a group of 3,500 black
Donnelly employees that filed suit against the company. The training
program had been instituted after the company was hit with a
discrimination lawsuit in 1993. There are so many examples of diversity
training gone bad that a new group of consultants has come into
existence—their sole job is to visit companies to correct the
damage caused by faulty diversity training programs.

AFFIRMATIVE ACTION

Affirmative action is a controversial policy that is intended to
counteract racial discrimination.
West's Encyclopedia of American Law
defines affirmative action as referring "to both mandatory and
voluntary programs intended to affirm the civil rights of designated
classes of individuals by taking positive actions to protect them."
In other words, affirmative action actively promotes the interest of
minorities over nonminorities in order to correct past discrimination. For
example, in a situation where a test is required before starting a
particular job or to earn a promotion, minorities may be given preference
over nonminorities for that job or promotion even though they score lower
on the test than the nonminority worker. While this may seem wrong to some
people, those who support affirmative action argue that past acts of
discrimination have been so blatant that extraordinary steps are required
to overcome those acts. At the start of the twenty-first century, however,
affirmative action programs are under fire across the United States, with
numerous court challenges occurring across the country.

One effect of affirmative action has been an increase in "reverse
discrimination" lawsuits, in which nonminority workers allege that
they have been discriminated against. In situations where companies have
used affirmative action to help undo decades of blatant discrimination,
white workers have become upset over being passed over for jobs and
promotions. They claim that, if it is unfair to not hire a qualified
worker just because he or she is a minority, then it should be equally
unfair to not hire a qualified worker just because he or she is white.
White employees have argued that, even though they have higher
qualifications, experience, and skill, they are being passed over for jobs
in favor of less-qualified candidates who are minorities.

In response to reverse discrimination lawsuits involving affirmative
action programs, courts have recognized the need to overcome past racial
bias, but have also sided with the nonminority workers in many cases. For
example, in an attempt to redress past problems, a public university ruled
that women and minorities would no longer have to take a test to qualify
for a special employment program. As a result, for nine years, every job
opening in the program went to a woman or a minority, even though white
males represented half of the applicant pool. When the university's
program was challenged in a lawsuit brought by white males, the courts
ruled that the test exemption
ensured that "the sole purpose of the affirmative action plan was
to circumvent a lawful … preference program" and that the
exemption violated Title VII because it caused white men to be excluded
from the job in question. The school was forced to pay $113,000 to settle
the case and correct the reverse discrimination.

Reverse discrimination does not always have to involve affirmative action,
however. In 1999, five white instructors at traditionally black
Livingstone College sued the college and charged it with racial
discrimination. The five faculty members argued that documents proved that
college administrators were attempting to fill all faculty positions with
black teachers, going so far as to remove whites from department chairs
and other positions. One of the plaintiffs in the case even filed a
separate lawsuit, arguing that he had suffered "emotional pain and
suffering" when he was passed over in favor of less-qualified black
teachers.

RACIAL DISCRIMINATION STILL ON THE RISE

While great strides have been made to improve race relations in some
areas, there is statistical evidence to show that racial discrimination in
the workplace is still disturbingly commonplace. In 2000, the EEOC
reported the results of a study of workplaces in North Carolina that
showed that accusations of racial harassment on the job nearly quadrupled
between 1996 and 2000, jumping from 16 reported incidents in 1996 to 62 in
2000 in just one region of the state. Mindy Weinstein, attorney at the
EEOC office in Charlotte, North Carolina, was uncertain of what caused the
increase, but she had some ideas. "There's a new generation
of workers today who were not raised in the civil rights movement, who may
not have been aware of the laws that came about because of that
time," she said in the
Raleigh News & Observer
. "We think it's largely a reflection of what's going
on in society as a whole."

Another potential cause of the increase is the fact that, thanks to
earlier efforts to wipe out racial discrimination, there are more
minorities than ever before in the workplace and also in high-level
positions of power. Because minorities have been able to compete on a
level playing field, they have been able to rise through the ranks more
quickly, often taking jobs that were traditionally held by white workers.
This can lead to resentment among the formerly dominant workers who are
now lower on the employment ladder.

Another example of how racial discrimination is on the rise despite
efforts to combat it involves wages. Traditionally, there has been a
"wage gap" between minority and nonminority employees. That
means that, when a minority worker and a nonminority worker held the exact
same job, the minority worker was paid less money for his or her efforts.
From the 1940s to the 1970s, that gap between minority and nonminority
workers actually narrowed as civil rights legislation was enacted and
prevailing attitudes changed. However, in the 1980s and 1990s, the gap has
actually reversed directions and begun to widen once again, according to
Nation's Cities Weekly.
The gap is increasing for both men and women and for all educational
levels. In addition, the unemployment level for black workers has risen at
the same time. A study by the Catalyst nonprofit group reported in
HR Focus
showed that men of color in management earned 75 cents for every dollar
earned by white males in the same job in 1998, while women of color earned
57 cents.

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User Contributions:

If a person is terminated due to racial discrimination and there is a case with EEOC, when the case is completed and the claiment has won his or her case is the company responsible for loss wages and unpaid hospital bills? How long does this process take?

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